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March 14, 2013

In recent advising and representation of clients on vapor intrusion/indoor air issues from soil and/or groundwater plumes containing chlorinated solvents or other volatile chemicals, a representative of the Texas Commission on Environmental Quality (TCEQ) advised us that the agency is moving forward with issuing guidance on vapor intrusion in the coming months. How that comes out will have potential impact not only on industrial facilities, but on real estate transactions where light industry, gas stations, dry cleaners, and other current or historical uses may affect groundwater on-site or off-site.

In transactions I have been involved in, buyers often look to address potential vaport intrusion in terms of remediation, insurance, indemnities, and other provisions in sales contracts. Lenders consider these issues and have to be convinced it will not cause liability to the borrower or cause issues with tenants and payments on leases. Lenders are concerned with payment of loans and protectin of collateral value. Vapor intrusion/indoor air has spawned lawsuits in some states.

In Texas, currently, the Texas Risk Reduction Program (TRRP) rules required notification of the TCEQ and persons exposed or who may be exposed, as soon as possible or within 60 days. The rules do allow the use of Occupational Health and Safety Administration (OSHA) or the American Conference of Governmental Industrial Hygienists (ACGIH) levels for occupational exposure. To use these levels a health and safety plan must be submitted and a certification it is being followed must be submitted to the TCEQ. Currently, these levels rather than the very low Risk Based Exposure Levels for commercial and industrial sites may be used.

In other parts of the country, EPA regional offices and some states have adopted very low levels at least as screening levels that may be below the method detection limit for testing protocols for indoor air. This makes management of indoor air and vapor intrusion difficult for some chemicals, particularly trichloroethylene. These low levels are orders of magnitude below the OSHA and ACGIH levels, and appear to be below what is necessary to protect workers.

Fortunately, it appears the TCEQ is going to continue to allow worker standards developed by an agency or organisation with a long history of developing safe levels for workers. This will allow a more rational approach to vapor intrusion and indoor air issues. The need to follow and comment on TCEQ policy and guidance on vapor intrusion/indoor air is critical to a sound policy on worker protection under environmental remediation regulations in Texas.

March 25, 2008

In a rather stunning development, Governor Kathleen Sebelius vetoed a bill passed by the Kansas Legislature to allow two coal fired-power plants to receive their air emissions permits in a move to overturn the Kansas environmental agency to hold them back in response to the greenhouse gases they would emit. The veto in effect is a current ban on coal-fired power plants in Kansas. This development shines a spotlight on the need to develop a coherent and effective climate change and energy policy for the United States. Carbon capture and storage or sequestration will be a necessary part of those policies.

After vetoing the bill that would have allowed 11 million tons of greenhouse gases to be produced from two new coal-fired power plants, the governor signed Executive Order 08-03, which establishes the Kansas Energy and Environmental Policy Advisory Group.

"We know that greenhouse gases contribute to climate change,” Sebelius stated. “As an agricultural state, Kansas is particularly vulnerable. Therefore, reducing pollutants benefits our state not only in the short term – but also for generations of Kansans to come.”

Sebelius has named Jack Pelton, chairman, president and chief executive officer of Cessna Aircraft Company, to lead this group.

"I am so pleased that one of our most prominent business leaders has agreed to serve as chair,” Sebelius said. “Jack understands the balance between continuing to grow our economy and making sure that we protect our environment and maximize our natural assets for future generations. The Advisory Group will explore opportunities in all sectors of our economy to accomplish the goal of reducing our greenhouse gas emissions; and, at the same time, continue to take advantage of the economic prosperity provided by job growth throughout Kansas."

In her State of the State Address this past January, Sebelius discussed the need for Kansas to join 36 other states in developing a state plan to deal with climate change. The Energy and Environmental Advisory Group will develop recommendations to the governor involving opportunities to reduce greenhouse gas emissions, as well as a recommended timetable for implementation. Other issues to be examined by this group include a study of the impact electrical production has on community economic development and the opportunities to diversify Kansas’ energy portfolio.

The process will be facilitated by the Center for Climate Strategies (CCS). Their work is supported by the Energy Foundation and the Sandler Family Supporting Foundation, which includes the Rockefeller Brothers Fund. CCS has developed climate action plans in: Arizona, New Mexico, Montana, Colorado, Washington, Minnesota, North Carolina, and Vermont. State plans are underway in South Carolina, Florida, Arkansas, Michigan, Maryland, and Alaska.

The veto decision places increasing pressure on state legislatures and the federal government to develop a coherent and national climate change and greenhouse gas management plan that incorporate an energy policy and strategy the US has lacked for decades.It is clear that climate change policy and energy policy are inextricably intertwined, requiring policy decisions in the near future as Congress and the current President have failed to take on these issues.

One of the other key issues not discussed is the reality that coal-fired power plants must capture and store or sequester the carbon underground.The capture phase presents some challenges but could be implemented with existing technologies.Cost is the primary concern and utilities cannot justify the expense unless legislation requires the investment.The transportation and storage or sequestration below ground is an old technology used to enhance oil and gas recovery.Thus, to begin requiring new coal-fired power plants to capture the carbon dioxide from these plants and to inject it underground is a step that is critical to using a low cost source of energy in a manner that protects the environment.By capturing the gases emitted from coal-fired power plants, other pollutants like sulfur dioxide and mercury would also removed from the emissions of the plants that would otherwise be released to the atmosphere.

This veto and effective prohibition of coal-fired power plants demonstrates it is clearly time for the sake of the utility industry and the public that we have a coherent energy and climate change policy for the United States. Hopefully, we will see consistent and dedicated work in Congress this year and leadership by a newly-elected president in 2009, whomever that party may be.

November 15, 2007

Governors of nine midwestern states, along with the Canadian province of Manitoba today signed the Midwestern Regional Greenhouse Gas Reduction Accord to establish a regional multisector cap-and-trade program to reduce greenhouse gas emissions and to promote the use of renewable energy.With the Western States Climate Initiative and the Regional Greenhouse Gas Initiative in the northeast, the action by the Midwestern states brings the number of states to 22 that have committed to reducing greenhouse gas emissions.

·Develop a market-based and multi-sector cap-and-trade mechanism to help achieve those reduction targets;

·Establish a system to enable tracking, management, and crediting for entities that reduce greenhouse gas emissions; and

·Develop and implement additional steps as needed to achieve the reduction targets, such as a low-carbon fuel standards and regional incentives and funding mechanisms.

These Midwestern states now must set firm emissions reductions targets and timetables for reducing greenhouse gas emissions.

The governors are also calling for greater use of non-petroleum energy sources such as wind power and grain-based ethanol.Under the agreement, 15 percent of all gasoline stations in the region would be selling ethanol mixes by 2015, and one-in-four by 2025.

These states combined are the fifth largest emitter of greenhouse gas emissions behind the United States as a whole, Russia, China and India.

This new accord puts even greater pressure on Congress, as almost half the states have already committed to restricting greenhouse gas emissions.